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<=
/span>This
matter came before the Office of Environmental Adjudication (the OEA or the
Court) for a hearing on the petitions for review, and the Environmental Law
Judge having heard the evidence and testimony and read the record and
pleadings, enters the following findings of fact, conclusions of law and fi=
nal
order.

=
1.On
February 22, 2010, Frank and Linda O’Neal (the O’Neals) filed a
petition for review with the OEA.On February 23, 2010, Richard E. Gooding, Sr. and Betty Gooding (the
Goodings) filed a petition for review with the OEA.On February 26, 2010, the Killbuck
Concerned Citizens Association, Inc., William Kutschera and Daniel B. Spall
(collectively KCCA) filed their petition for review.On February 26, 2010, Pete V. Bitar
filed a petition for review with the OEA.&=
nbsp;

=
2.On
April 19, 2010, the City of An=
derson
moved to intervene in this matter.This motion was granted on May 7, 2010.

=
3.The
IDEM filed its Motion to Dismiss on July 23, 2010.On the same date, JM Corporation f=
iled
its Motion for Summary Judgment.

4.&n=
bsp;
The ELJ issued Findings of Fact, Conclusions of Law=
and
Order on October 28, 2010.The
Order provided:

=
1.&n=
bsp;
The IDEM’s Motion to Dismiss is GRANTED on all issues except as speci=
fied
in paragraphs #2 and #3 below.

2.&n=
bsp;
JMC’s Motion for Summary Judgment is DENIED as to the following issues=
:whether JMC has complied with 329 =
IAC
10-16-1.

3.&n=
bsp;
To avoid dismissal of this matter, the Court grants
leave to the Petitioners to amend their petitions for review, in a manner
consistent with this Order, within ten (10) days on the following issues ONLY.Failure to amend in a timely manner shall result in the dismissal of=
the
petitions for review.

·Frank and Linda O’Neal shall amend the=
ir
petition to specify which regulations IDEM failed to follow relating to the=
ir
allegation that their well water will be affected.

·Richard E. Gooding, Sr. and Betty Gooding sh=
all
amend their petition to specify which regulations IDEM failed to follow
relating to their allegation that the Landfill will have an impact on surfa=
ce
and ground water.

·Pete V. Bitar shall amend his petition to
specify which regulations IDEM failed to follow relating to his allegation =
that
the Landfill will have an impact on surface and ground water.

·KCCA shall amend its petition to specify how=
(1)
JMC has failed to comply with applicable regulations since the Permit was
initially issued in 1988; (2)IDEM
failed to consider certain environmental data; and (3) IDEM failed to follow
applicable statutes and regulations regarding the issuance of the Permit. <=
/p>

5.&n=
bsp;
KCCA and the Goodings filed amended Petitions on
November 5, 2010.

6.&n=
bsp;
A final prehearing conference was held on November =
9,
2010.KCCA, the city of Ander=
son,
the Goodings and Mr. Bitar appeared.The O’Neals did not appear.

=

[2011 OEA 2=
6, page 29
begins]

7.&n=
bsp;
The final hearing was held on November 17 and 18, 2=
010.

FINDINGS OF FACT

1. &n=
bsp;
The findings of fact set forth in the Findings of F=
act,
Conclusions of Law and Order issued on October 28, 2010 are incorporated
herein.

&nb=
sp;

2. &n=
bsp;
In 1988, IDEM issued a solid waste operating permit=
to
JMC.The permit authorized the
operation of the Mallard Lake Landfill located at 3823 East 300 North,
Anderson, Madison County, Indiana (the Landfill) as a municipal solid waste
landfill.

3. &n=
bsp;
Construction of the initial fill area was completed=
in
late 1987.[1]

8. &n=
bsp;
The Landfill has not received waste for disposal. The Indiana Supreme Court, in KCCA v. J.M. Corporation, 2011 Ind.
LEXIS 70 (Ind.
2011), determined that JMC’s facility included a container collection
system and had received waste for storage.=

9. &n=
bsp;
The Landfill is located more 11,000 feet from the <=
st1:place
w:st=3D"on">AndersonMunicipal

Airport=
st1:PlaceType>.

10.On
May 3, 1996, JMC notified the Federal Aviation Administration and the Ander=
son
Municipal Airport that the Landfill would be located within a five-mile rad=
ius
of the an airport runway.

11.Pursuant
to I.C. § 4-21.5-3-26(f), the ELJ takes official notice of the fact th=
at
JMC was a corporation in good standing on March 4, 2003.[3]

Applicable Law

[2011 OEA 2=
6, page 30
begins]

&nbsp=
; The
Indiana Department of Environmental Management (IDEM) is authorized to
implement and enforce specified Indiana environmental laws and rules
promulgated relevant to those laws, pursuant to Ind. Code (I.C.) §
13.The Office of Environment=
al
Adjudication (“OEA”) has jurisdiction over the decisions of the
Commissioner of the IDEM and the parties to this controversy pursuant to I.=
C.
§ 4-21.5-7-3.

&nbs=
p;

&nbs=
p; KCCA
alleges that JMC failed to make a timely application for renewal of the Per=
mit
under 329 IAC 10-11-5.1.This
regulation requires that an application for renewal must be submitted ̶=
0;at
least one hundred twenty (120) days prior to the expiration date of the per=
mit
or the permit will be invalid upon expiration.”

&nbs=
p; KCCA
further alleges that JMC’s permit application was deficient for failu=
re
to comply with 329 IAC 10-11-2.1(e).This regulation requires the applicant, if it is a corporation, to
include a certificate of existence signed by the secretary of state.329 IAC 10-11-5.1 requires a permit
renewal application to comply with most of the requirements of 329 IAC
10-11-2.1, including 2.1(e).=

&nbs=
p; KCCA
also argues that the Permit was improperly issued because IDEM did not cons=
ider
JMC’s non-compliance with certain regulations.329 IAC 10-13-2[4] requ=
ires
the following:

&nb=
sp;

The commissioner shall review the application to determine whether the
solid waste land disposal facility or the operation is in compliance with t=
he
plans and specifications in its existing permit. The commissioner may reque=
st
clarification or supplementation of information submitted in support of the
renewal application. The commissioner shall evaluate the facility's complia=
nce
record under:

&nbsp=
; KCCA
contends that the IDEM erred in issuing the Permit because JMC had not comp=
lied
with the requirements of 329 IAC 10-14-1 and 329 IAC 10-14-2.329 IAC 10-14-1 requires the owner=
or
operator of a “solid waste land disposal facility” “that =
is
open to accept solid waste for disposal”[5] to
submit quarterly reports to the IDEM.329 IAC 10-14-2 requires a “solid waste land disposal
facility” “that is open to accept solid waste for disposal̶=
1;
to install weighing scales.

[2011 OEA 2=
6, page 31
begins]

&nbsp=
; The
Supreme Court of Indiana, in KCCA v=
. J.M.
Corporation, 2011 Ind. LEXIS 70 (Ind. 2011)[6], for
purposes of determining whether I.C. §13-20-2-11 was applicable, held =
that
JMC’s “facility” had accepted waste prior to April 2008 b=
ased
on JMC operating a collection container system at the facility.However, the Court distinguished b=
etween
the terms “facility” and “landfill” saying “<=
span
style=3D'color:#333333'>The term [facility] includes solid waste landfills,=
id.,
but it is not limited to them.”KCCA at 76.“Put another way, JMCs
facility includes both its landfill (disposal operation) and collection
container system (storage operation).”KCCA
at 77.

&=
nbsp; Lastly,
KCCA asserts that the permit application was deficient in that JMC failed to
comply with 329 IAC 10-16-1 and that the Landfill is a bird attractant and
thus, presents a danger to aircraft and persons using and living in the are=
a of
Anderson =
MunicipalAirport=
st1:PlaceType>.This regulation requires that the =
permit
applicant demonstrate that a landfill located less than 10,000 feet from an
airport will not create a bird hazard to aircraft.If the landfill is located within =
five
(5) miles of an airport, the applicant must notify the airport and the Fede=
ral
Aviation Administration.

&=
nbsp; 329
IAC 10-16-1(f) states, “A new MSWLF must not be permitted within six =
(6)
miles of a public airport as specified under 49 U.S.C. Sec. 44718 unless the
MSWLF permittee has been granted an exemption under 49 U.S.C. Sec.
44718.”49 U.S.C. 44718=
does
not apply to landfills that were constructed prior to the law’s effec=
tive
date (April 5, 2000). &nb=
sp;

CONCLUSIONS OF LAW

<=
/b>

<=
span
style=3D'mso-bidi-font-weight:bold'>1.The
OEA has subject matter jurisdiction to hear the petitions for review as the
petitions request review of a decision made by the IDEM Commissioner.Further, the Court concludes that =
the
petitions were timely filed.

=

2.&n=
bsp;
This office must apply a de novo standard of
review to this proceeding when determining the facts at issue.Indiana<=
/i>
Dept. of Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).Findings of fact must be based
exclusively on the evidence presented to the ELJ, and deference to the
agency’s initial factual determination is not allowed.Id.; I.C. §4-21.5-3-27(d). Further, OEA is required to base i=
ts
factual findings on substantial evidence. Huffman
v. Office of Envtl. Adjud., 811 N.E.2d 806, 809 (Ind. 2004) (appeal of =
OEA
review of NPDES permit); see also=
i>
I.C. § 4-21.5-3-14; I.C. § 4-21.5-3-27(d).

3.&n=
bsp;
The Goodings failed to amend their petition for rev=
iew
in accordance with the October 28, 2010 Order issued by the presiding ELJ.<=
span
style=3D'mso-spacerun:yes'> Further, the Goodings failed to ap=
pear
at the final hearing in this matter.The Petition for Review filed by Richard E. Gooding, Sr. and Betty
Gooding is DISMISSED for failu=
re to
comply with the Court’s order and for failure to present evidence
regarding the objections specified in the Petition for Review.

4.&n=
bsp;
Mr. Bitar and the O’Neals failed to amend the=
ir
petitions for review in accordance with the October 28, 2010 Order issued by
the presiding ELJ.Frank and =
Linda
O’Neal and Pete V. Bitar’s claims relating to ground or surface
water contamination are DISMISSED.=

5.&n=
bsp;
JMC submitted its application on the 120th
day prior to the Permit’s expiration date.JMC’s submission of the Perm=
it
renewal application was timely.

=

[2011 OEA 2=
6, page 33
begins]

=

6.&n=
bsp;
Even if the application was not timely, 329 IAC
10-11-5.1(b) does not preclude the issuance of a renewal.This regulation administratively e=
xtends
the effectiveness of a permit in the event that the IDEM does not complete =
its
review prior to a permit’s expiration date.If a permittee fails to file its r=
enewal
application on time, the consequence is that the permit expires.There is no provision that the IDE=
M is
then precluded from issuing the renewal once it completes its review, as it=
did
in this case.

7.&n=
bsp;
Further, in this case, the Permit is an operating
permit.Whether the permit ex=
pired
is a moot point as the Landfill did not operate between 2003 and IDEM’=
;s
issuance of the renewal.

8.While
a permit applicant has the obligation to submit a complete renewal applicat=
ion,
the IDEM must also review the application for completeness and give the
applicant the opportunity to supplement its application before it is
denied.I.C. § 13-15-4-9=
.Ther=
efore,
if JMC failed to submit its statement of existence, the proper course of ac=
tion
for IDEM would not be to deny t=
he
permit, but rather to request the required information. The permit could on=
ly
be denied if the permittee then failed to submit the requested
information.Additionally, the
Petitioners failed to show that JMC was not a corporation in good standing =
at
the time of the renewal application was submitted.A search of the Secretary of
State’s website[7] reve=
aled
that JMC was, in fact, a corporation in good standing at the time the renew=
al
application was submitted.[8]OEA finds that the failure to subm=
it the
Certificate of Existence in compliance with 329 IAC 10-11-2.1(e) is not gro=
unds
for revocation of the permit renewal.The OEA will not impose such an extreme sanction for failure to comp=
ly
with a requirement that can be accurately and readily determined by resort =
to
sources whose accuracy cannot be reasonably questioned.

9.&n=
bsp;
The regulations, 329 IAC 10-14-1 and 329-10-14-2, d=
eal
with submitting quarterly reports and having weighing scales on site,
respectively.However, each o=
f the
rules at issue applies only to landfills that are accepting waste.Specifically, 329 IAC 10-14-1(c) s=
tates
that the rule regarding submission of quarterly reports applies to a site
“that is open to accept solid=
waste
for disposal.”(Emp=
hasis
added).329 IAC 10-14-2(a)(2)=
(A)
contains a similar exception, noting that “[e]xisting solid waste land
disposal facilities required to install weighing scales under the following
conditions: (A) The solid waste land disposal facility is open to accept solid waste for disposal.”(Emphasis added).The landfill at issue has never ac=
cepted
solid waste for disposal, and thus the permittee was not required to submit
quarterly reports or have weighing scales on site.

=

[2011 OEA 2=
6, page 34
begins]

=

10.&=
nbsp; Moreover,
329 IAC 10-13-2 does not require compliance with the provisions of 329 IAC
10-14.Therefore, as the
Petitioners failed to present any evidence that such compliance was necessa=
ry
or that JMC was not in compliance with (a) the requirements of 329 IAC 10-1=
4-1
and 329-10-14-2 or (b) with the “operational requirements of 329 IAC
10-20, 329 IAC 10-28, or 329 IAC 10-36 as appropriate”[9], the
Petitioners have failed to meet their burden of proof on this objection. =
p>

11.&=
nbsp; The
Supreme Court’s determination that the “facility”, in the
form of a container collection system, accepted waste is not conclusive her=
e.
The Court distinguished between accepting waste for storage versus accepting
waste for disposal and held that JMC had accepted waste for storage.As the remaining Petitioners faile=
d to
prove that the landfill accepted waste for disposal, the requirements of 329
IAC 10-14-1 and 329 IAC 10-14-2 are not applicable.

<=
span
style=3D'mso-bidi-font-weight:bold'>12.While
it may be true that the Landfill will be a bird attractant and therefore, m=
ay
create a bird hazard at the airport, this, alone, is not sufficient to
determine whether that the Permit was properly issued.The standard is whether the Permit
complies with all written criteria contained within the relevant rules and
statutes.The Solid Waste
Management Board, as the board with the authority to promulgate rules relat=
ing
to solid waste, decides what an acceptable risk to human health and the
environment is.

13.KCCA
alleges that since the landfill at issue has never accepted waste, it meets=
the
definition of a “new MSWLF Unit.”However, the Mallard Lake Landfill=
is a
“MSWLF” not a “MLSWLF unit.”
Compare 329 IAC 10-2-116 and 32=
9 IAC
10-2-117.

14.Since
the Mallard Lake Landfill is not a new MSWLF, and is more than 10,000 feet =
from
the Anderson Airport, pursuant to 329 IAC 10-16=
-1, it
is only required to complete “[n]otification to the affected airport =
and
the Federal Aviation Administration (FAA) of the intent to site a solid was=
te
land disposal facility.” KCCA
has not demonstrated that the applicant and the IDEM failed to meet the
requirements of 329 IAC 10-16-1.<=
o:p>

&=
nbsp; IT
IS THEREFORE ORDERED, ADJUDGED AND
DECREED that the Petitions for Review filed by the Petitioners are DISMISSED.

&=
nbsp; You
are hereby further notified that pursuant to provisions of I.C. §
4-21.5-7-5, the Office of Environmental Adjudication serves as the Ultimate
Authority in the administrative review of decisions of the Commissioner of =
the
Indiana Department of Environmental Management.This is a Final Order subject to
Judicial Review consistent

&n=
bsp;

[2011 OEA 2=
6, page 35
begins]

&n=
bsp;

with ap=
plicable
provisions of I.C. § 4-21.5.Pursuant to I.C. § 4-21.5-5-5, a Petition for Judicial Review of
this Final Order is timely only if it is filed with a civil court of compet=
ent
jurisdiction within thirty (30) days after the date this notice is served.

[6] This
decision was issued February 10, 2011, after post-hearing briefs and propos=
ed
findings of fact, conclusions of law and orders were filed.None of the parties have requested=
leave
to address the effect of this decision.&nb=
sp;
The ELJ, sua sponte, add=
resses
the effect of this decision on this matter.

[7] Purs=
uant
to I.C. § 4-21.5-3-26(f), the administrative law judge may take offici=
al
notice of any fact that could be judicially noticed.Per Indiana Rules of Evidence 201(=
a) a
court may take judicial notice of a fact that is not subject to reasonable
dispute in that is “capable of accurate and ready determination by re=
sort
to sources whose accuracy cannot be reasonably questioned.”The ELJ concludes that the Indiana
Secretary of State’s website, when determining whether a corporation
doing business in Indiana
is in good standing, is a source whose accuracy cannot be reasonably
questioned.

[8] The =
fact
that JMC was in good standing at the time of the hearing is irrelevant.The question is what its status wa=
s at
the time the renewal application was submitted.